CCSD asks state Supreme Court to delete transparency law

The Clark County School District is once again wasting tax dollars on frivolous legal battles designed to keep the public in the dark and the district immune from consequence for its repeated, willful violations of the state’s open records law.

When a government agency unlawfully denies access to a public record, the only recourse available to the requester is to petition the courts to compel the agency to disclose the record.

The Legislature in 1993 amended the law to require that government agencies pay the requester’s costs and attorney’s fees, if the court determines the agency unlawfully withheld the requested public records.

The text of the relevant statute is remarkably clear and straightforward:

If the requester prevails, the requester is entitled to recover his or her costs and reasonable attorney’s fees in the proceeding from the governmental entity whose officer has custody of the book or record. NRS 239.011(2)

This is necessary as the reverse would be absurd on its face: absent this provision, members of the public would be required to pay tens of thousands of dollars on legal fees just to force the government to comply with its own transparency law.

Yet, that scenario — which would functionally delete the state’s public records law — is precisely what CCSD is arguing for in a just-filed brief before the Nevada Supreme Court.

Specifically, CCSD claims that agencies are only required to pay the prevailing requester’s legal fees if the court finds that they withheld records in “bad faith.”

CCSD cites two factors as the basis for this frivolous argument.

First, they cite comments made by a member of the public during the legislative hearings from when NRS 239.011(2) was enacted, who stated she believed agencies would only have to pay the requester’s legal fees if they had acted in “bad faith.”

No such comments were made by the actual legislators, however. In fact, those same legislative minutes reflect that the lawmakers understood that statute to mean precisely what it says: a requester who prevails in court is entitled to their fees and costs.

Nonetheless, if CCSD truly believes that comments made by members of the public dictate the true meaning of a statute, I’ve got quite a lot to say at the next legislative hearing on what “properly funding” education means!

CCSD’s other argument cites a separate section of Nevada’ Public Records Act, which reads as follows:

NRS 239.012 Immunity for good faith disclosure or refusal to disclose information. A public officer or employee who acts in good faith in disclosing or refusing to disclose information and the employer of the public officer or employee are immune from liability for damages, either to the requester or to the person whom the information concerns.

But NRS 239.012 has no bearing on the requirement for agencies to pay a prevailing requester’s fees outlined in NRS 239.011, and instead seeks to protect employees from damages for both disclosing and refusing to disclose information, if they did so in good faith.

So an example might be an employee who mistakenly released someone’s confidential medical records, which in turn harmed that individual in some way. Notice how this has nothing to do with the requester, much less their entitlement to attorney’s fees.

But the real problem isn’t CCSD’s awful legal reasoning in this particular case; it’s their continued willingness to take precious resources away from the children they are supposed to serve, just to fund endless legal efforts designed to keep them immune from transparency and accountability.

While the several million dollars CCSD spends on legal services each year is admittedly a small fraction of their overall budget, actions like these reflect a broader culture which prioritizes secrecy over the needs of its students, like what occurs in their special-education and purchasing departments, for example.

Nevadans deserve better than this.

In large part because of its privileged status as a tax-funded monopoly, CCSD has lost sight of its primary mission and, instead, far too frequently puts its own self-interest ahead of the students it exists to serve.

By introducing real competition from an expansive school choice program, CCSD might finally be forced to improve and recognize that the tax dollars entrusted to it are supposed to go to the benefit of its students, and not towards things like frivolous legal efforts designed to keep the public in the dark and the district immune from accountability.

Robert Fellner is NPRI’s policy director and joined the Institute in December 2013. Robert has written extensively on the issue of transparency in government. He has also conducted legal research and assisted in crafting legal arguments for numerous public records-related lawsuits, including one which prevailed at the Nevada Supreme Court, resulting in a landmark decision that protected and expanded Nevadans’ rights to access and inspect government records.

An expert on government compensation and its impact on taxes, Robert has authored multiple studies on public pay and pensions. He has been published in Business Insider, Forbes.com, the Las Vegas Review Journal, the Los Angeles Times, RealClearPolicy.com, the San Diego Union-Tribune, the Wall Street Journal, ZeroHedge.com and elsewhere.

Robert has lived in Las Vegas since 2005 when he moved to Nevada to become a professional poker player. Robert has had a remarkably successfully poker career including two top 10 World Series of Poker finishes and being ranked #1 in the world at 10/20 Pot-Limit Omaha cash games.

Additionally, his economic analysis on the minimum wage won first place in a 2011 George Mason University essay contest. He also independently organized a successful grassroots media and fundraising effort for a 2012 presidential candidate, before joining the campaign in an official capacity.